This fall, the Supreme Court will hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the owner of a commercial bakery claims a right under the First Amendment to refuse his cake-designing services to same-sex couples. Most readers of this page probably believe, as I do, believe that the Court should decline this invitation to recognize, or rather create, any such constitutional right of businesses to discriminate in this fashion. Rather than editorialize, however, I want to give interested readers a sense of the legal doctrines and lines of argument that the case brings into play.
For some fifty years, many state public accommodations laws have prohibited businesses engaged in commercial activity from discriminating against patrons because of their race. These public accommodations laws have been expanded over time to prohibit other forms of discrimination, and in 2008, Colorado amended its Anti-Discrimination Act to provide that a business that sells products or services to the public may not refuse service to a customer on account of his or her sexual orientation.
In 2012, Charlie Craig and Davis Mullins asked the Denver-based Masterpiece Cakeshop to make them a cake for their wedding reception. The bakery owner, Jack Phillips, refused their request, explaining that his religious beliefs did not permit him to design cakes for same-sex marriage ceremonies. The couple complained to the Colorado Civil Rights Commission, which ruled that Masterpiece had violated the state’s antidiscrimination law. The Commission held that if the bakery made cakes for couples celebrating opposite-sex marriages, it had to do so for couples celebrating same-sex marriages.
The bakery owner appealed the decision to the Colorado Court of Appeals, arguing that this application of the law, which he said effectively compelled him to endorse a wedding in violation of his religious convictions, infringed his First Amendment rights of both free speech and free exercise of religion. The Colorado court rejected his arguments and upheld the commission, holding that the state law was constitutional because it did not force the baker to affirm or deny any particular beliefs, and no reasonable observer would equate providing a cake to Craig and Mullins as an endorsement of their wedding.
The case is now before the Supreme Court, which will likely hear oral arguments in December and reach a decision sometime in the spring.
In its written submission to the Court, Masterpiece relies heavily on the principle underlying West Virginia v. Barnette, the 1943 case in which the Court famously held that the state could not force schoolchildren to pledge allegiance to the flag. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” the Court declared in that case, adding that “[i]f there are any circumstances which permit an exception, they do not now occur to us.” Masterpiece’s owner argues that this principle allows him to refuse to allow his creative skills to be conscripted in support of a viewpoint with which he does not agree.
No one, argues Masterpiece, would deny the right of “a black baker [to] refuse to make a cake bearing a white-supremacist message for a member of the Aryan Nation,” or of “an Islamic baker [to] refuse to make a cake denigrating the Koran for the Westboro Baptist Church.” Why, then, he asks, may the Colorado authorities compel him to create a custom cake that offends his own beliefs? The only difference between his case and those hypothetical ones, he argues, is in the content of the viewpoint being expressed.
Masterpiece also relies on the Court’s controversial ruling in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, which held that organizers of Boston’s St. Patrick’s Day Parade could not be forced to include a gay, lesbian and bisexual rights group in the parade. State authorities, applying the public accommodations law, had ordered the organizers to include the group. That application of the law violated the organizers’ First Amendment rights because, according to the Court, forced inclusion of the LGBTQ group altered the message that the organizers wanted to communicate.
Masterpiece contends that it should get the same protection as the parade organizers. Its creations are speech, it argues, because of the artistry that goes into custom cake-making. Forcing it to include same-sex wedding cakes in its repertoire amounts to forcing it to change its message.
The written arguments of the Colorado Commission, and of Craig and Mullins, have not yet been filed. We can get an idea of their position, though, from their earlier submissions urging the Court not to take the case. Their argument is that there is a difference between “laws that target speech or alter the message of private expressive associations, and laws that regulate commercial business practices without regard to content or viewpoint.” Unlike the parade example, they argue, this case “does not involve a private expressive event but a business that provides goods and services to the public.” If Masterpiece sells cakes to same-sex as well as opposite-sex couples, they continue, no reasonable observer would conclude that it was communicating any particular view about marriage. A reasonable observer would simply conclude that it was complying with the law.
There is no forced speech here at all, the Commission and the couple argue, and the great principle of the flag salute case has no bearing on the case. Application of the antidiscrimination law to Masterpiece “does not regulate the process of designing or baking cakes, it merely prohibits the discriminatory refusal to provide goods and services to gay and lesbian customers on the same terms as others. The Company remains free to make whatever aesthetic judgments it chooses with respect to cake design.” A ruling in Masterpiece’s favor, they add, will open the door for all manner of claims by business owners that the First Amendment exempts them from the antidiscrimination laws, and other regulatory laws as well, if compliance would send a message the owners disagree with.
The outcome of the case will probably depend on the swing vote of Anthony Kennedy, a proponent both of marriage equality and of First Amendment rights for business. How he will choose between them at this point is anyone’s guess. We’ll have a closer look at the arguments when the opponents of the baker’s tale file their briefs.